Order Made by Name of Judge on Date Sitting in Open Court
A Proposed Draft Final TOLATA Order.
Just about every permutation of order in family proceedings has been considered in the Family Standard Orders project. However, family lawyers and litigants-in-person are given no suggested template for an order made at the conclusion of proceedings brought under the Trusts of Land and Appointment of Trustees Act 1996. These disputes often bear all the hallmarks of a “family” dispute but do not feature in the Standard Orders menu as they are civil orders made in Chancery Division of the High Court or in the County Court.
Here follows a suggested draft for a basic final TOLATA order concerning a property subject to a mortgage in the style of the Family Standard Orders, with the occasional marginal note. Attention too is drawn to the particular and additional requirements, when lodging orders (whether by consent or otherwise) before Chancery Masters, pursuant to a Practice Direction[i] issued by the Chief Master which is effective from the 1 October 2014.
ORDER MADE BY [NAME OF JUDGE] ON [DATE] SITTING IN OPEN COURT.
Upon hearing [name the advocate(s) who appeared]
The Parties
1. The Claimant is XX
The Defendant is YY
[The Second Defendant is ZZ]
Specify if any party acts by a litigation friend
Definitions
2. Property
The “property” shall mean the property known as [insert address including postcode] registered at HM Land Registry under title number [insert]
3. “The mortgage” shall mean the mortgage secured upon the property in favour of [insert name of mortgagee].
Agreements / Declarations
4. Declaration
It is declared that from [the date of this order] / [insert date] the [Claimant and Defendant] / [the Claimant] / [the Defendant] hold/[s] the property, subject to the mortgage, upon trust for the [Claimant and Defendant as joint tenants] / [Claimant and Defendant as tenants in common in equal shares] / [Claimant and Defendant as tenants in common, as to the Claimant [insert % share] and as to the Defendant [insert % share]] / [for the Claimant absolutely] / [for the Defendant absolutely]
[BY CONSENT][ii] IT IS ORDERED THAT
5. Order for Sale
The property shall be sold forthwith on the open market for sale and the following conditions will apply:
a. the property shall be placed on the open market for sale immediately for [insert price] / [such price as may be agreed between the parties or in default of agreement determined by the court];
b. the property shall be sold for [a price in excess of [insert] / [such price as may be agreed between the parties [in excess of [insert] [or in default of agreement determined by the court];
c. [Both parties]/[the Claimant]/[the Defendant] shall have conduct of the sale;
d. [the [Claimant’s]/[Defendant’s] solicitors]/[insert name of solicitors]/[such solicitors as may be agreed between the parties or in default of agreement determined by the court] shall have the conduct of the conveyancing work relating to the sale;
e. [insert name of estate agents]/[such estate agents as may be agreed between the parties or in default of agreement determined by the court] shall offer the property for sale; and
f. the proceeds of sale shall be applied as follows:
i. to discharge the mortgage;
ii. in payment of the solicitors’ conveyancing costs and disbursements in connection with the sale;
iii. in payment of the estate agent’s charges;
iv. [in payment of any capital gains tax payable upon the sale];
v. The balance to be paid to the parties in accordance with the declaration at the start of this order.
6. Order granting permission for one party to bid for the property[iii]
The [Claimant] / [and the] / [Defendant] [has] [each have] permission to bid for the property.
7. Order declining to order an immediate sale and granting one party exclusive rights of occupation[iv]
The application for an order for an immediate sale of the property is dismissed and the [Claimant] / [Defendant] shall vacate the property by [insert date] and from that date the [Claimant] / [Defendant] shall have exclusive possession of the property, subject to the mortgage and orders made below, until [insert date] / [further order] / [when the property shall be marketed for sale in accordance with the provisions of paragraph [insert] of this order].
8. Provisions consequential to paragraph above providing for the remaining party to pay an occupation rent to the departing party and for the remaining party to pay the routine outgoings and expenses during their period of exclusive occupation.[v]
[The [Claimant]/[Defendant] shall pay the [Claimant]/[Defendant] an occupation rent to the [Claimant] / [Defendant] in the sum of [insert the amount] per calendar month, to be paid monthly in advance, the first payment to commence on [insert date] until further order] / [completion of the sale of the property]. /
The [Claimant]/[Defendant], shall be responsible for the routine maintenance of the property (but not structural repairs, defined as repairs to load-bearing walls and to the roof, which shall be shared equally in any event) and the payment of the running costs, including but not limited to buildings and contents insurance payments, capital and interest mortgage payments, (the capital element of which shall upon completion of sale of the property be the subject to an account as provided for in paragraph 11 below), council tax and utility bills in respect of the property, commencing [insert date] until [further order]/ [completion of the sale of the property].
9. Order requiring one party to deliver up vacant possession of the property only[vi]
The [Claimant] / [Defendant] shall deliver up vacant possession of the property to the [Claimant] / [Defendant] by [insert date].
10. Order requiring a bare legal owner to transfer the legal title into the name of the beneficial owner[vii]
The [Claimant]/[Defendant] shall execute a transfer of the legal title of the property into the [Claimant’s]/[Defendant’s] sole name by [insert date].
11. Order for an account[viii]
There shall be an equitable account in respect of the [Claimant’s]/[Defendant’s] occupation of the property from [insert date] / [the date of separation on [insert date]] to the date when the account is finalised and in respect of the [Claimant’s]/[Defendant’s]/[the parties’ respective] [capital [and/or] interest] mortgage contributions from the [insert date] / [date of separation] to the date when the account is finalised [and in respect of the [Claimant’s]/[Defendant’s] works of [improvement/repair] to the property [as set out in the schedule to this order] which have occurred from [insert date] / [the date of separation]. The matter shall be listed before the district judge for an account to be taken if not agreed. In the event that the parties are able to agree the account they shall forthwith each write to the district judge confirming the terms of their compromise.
12. Order requiring a party to remove a notice/restriction at the Land Registry
The [Claimant]/[Defendant] shall use all reasonable endeavours from today’s date to cause the removal of [his]/[her] [notice]/[restriction] registered with the Land Registry in respect of the property.
13. Costs
[The [Claimant]/[Defendant] shall pay the [Claimant’s]/[Defendant’s] costs by [insert date] [including the costs reserved by the order(s) made on [insert date(s)], and if the costs are not agreed they shall be assessed / subject to detailed assessment in accordance with the Civil Procedure Rules 1998 Part 47]. /
[The [Claimant]/[Defendant] shall make an interim payment on account of such costs to the [Claimant]/Defendant] in the sum of [insert amount] by [insert date] / [The [Claimant]/[Defendant] shall pay £[insert] towards the [Claimant’s]/[Defendant’s] costs by [insert date]] /
[There shall be no order as to costs]
14. Costs – no order save for detailed assessment of a party’s publicly funded costs
There shall be no order as to costs save for detailed assessment of the [Claimant’s]/[Defendant’s] publicly funded costs in accordance with the Civil Procedure Rules 1998 Part 47.18.
Liberty to Apply
15. The parties shall have liberty to apply to the court as to the implementation and timing of the terms of this order only.
Dated
1
[i] http://www.judiciary.gov.uk/publications/chancery-masters-orders-effective-1st-october-2014/
[ii] Whilst it is possible to have a consent order in the form of this template, it is also common for parties to a civil compromise to agree a “Tomlin Order” which states only “The Claimant and Defendant having agreed to the terms set out in the Schedule hereto. IT IS ORDERED THAT All further proceedings in this claim be stayed except for the purpose of carrying such terms into effect. Liberty to apply as to the carrying such terms into effect.” The schedule may then contain detailed provisions which go beyond the court’s jurisdiction under TOLATA and may borrow heavily from Financial Remedy draft clauses. The agreements recorded in the schedule are contractual in nature and not undertakings to the court.
[iii] Note provisions of CPR 40.16 and PD 40D 2 and 3
[iv] ss. 13 & 14 TOLATA. For more detail see e.g. “To sell or not to sell: that is the question. The irony of the Trusts of Land and Appointment of Trustees Act 1996.” Martin Dixon (Cambridge Law Journal, 2011, 70(3), 579 – 606)
[v] ss. 13 & 14 TOLATA
[vi] ss. 13 & 14 TOLATA and CPR 40.17
[vii] Order pursuant to rule in Saunders v Vautier (1841) 4 Beav 115, Cr & Ph 240
[viii] ss. 13 & 14 TOLATA